Lehigh Valley Dual Language Charter School v. Bethlehem Area School District , 97 A.3d 401 ( 2014 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Lehigh Valley Dual Language :
Charter School, :
Petitioner :
:
v. : No. 2010 C.D. 2013
:
Bethlehem Area School District, : Argued: May 13, 2014
Respondent :
BEFORE: HONORABLE DAN PELLEGRINI, President Judge
HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION BY
JUDGE COHN JUBELIRER FILED: July 22, 2014
Lehigh Valley Dual Language Charter School (Charter School) petitions for
review of the October 15, 2013 Order of the State Charter School Appeal Board
(CAB) that granted the Motion to Quash (Motion) of the Bethlehem Area School
District (District) and dismissed Charter School’s appeal from the District’s denial
of Charter School’s request to amend its charter (Charter) to expand its existing
operations to a second location. The CAB concluded that Charter School’s appeal
should be dismissed because, pursuant to the Charter School Law1 (Law), Charter
School is not permitted to operate two locations under the same Charter. However,
1
Act of March 10, 1949, P.L. 30, added by Section 1 of the Act of June 19, 1997, P.L.
225, as amended, 24 P.S. §§ 17-1701-A – 17-1751-A.
we agree with Charter School that the CAB’s conclusion that Charter School could
not open a second location by amending its Charter is not in accordance with this
Court’s decisions in Montessori Regional Charter School v. Millcreek Township
School District, 55 A.3d 196 (Pa. Cmwlth. 2012) (en banc) and Northside Urban
Pathways Charter School v. State Charter School Appeal Board (Pittsburgh Public
School District), 56 A.3d 80 (Pa. Cmwlth. 2012) (en banc), and, therefore, we
reverse.
I. Background
The facts in this matter are not in dispute. Charter School currently operates
a kindergarten through seventh grade school at a single location in Bethlehem,
Pennsylvania pursuant to its Charter, which was issued by the District. In the
Spring of 2013, Charter School and the District began discussing the renewal of
the Charter. Both Charter School and the District agree that, during this period,
there were discussions in which Charter School expressed its desire to open a
second location for its fifth through seventh grade students. Charter School
indicated that it wanted to add the second location because its present location
lacked the “space to maintain [its] current student population” and to provide those
“students a true middle school experience that is not possible in the elementary
building.” (An Administrative Evaluation and Recommendation of the Charter
School Renewal Application of the Lehigh Valley Dual Language Charter School
at 5, R.R. at 5a.) On March 18, 2013, the District’s School Board (School Board)
renewed the Charter for five years; there was nothing in the renewal addressing a
second location. Thereafter, on or about June 5, 2013, Charter School officially
advised the District and the School Board that it intended to expand into the second
location and sought to amend the Charter accordingly. On June 24, 2013, Charter
2
School administrators met with the District’s superintendent and assistant
superintendent regarding the requested second location. Charter School entered
into a lease agreement for its second location on July 1, 2013.
Charter School presented its proposed expansion to the School Board’s
Curriculum Committee on July 22, 2013 and, by letter dated August 9, 2013,
Charter School advised the District of its position that there was nothing in the
Law that prohibited it from operating at two locations. (Letter from Counsel for
Charter School to District’s Counsel (August 9, 2013), R.R. at 15a.) The School
Board held a meeting on August 12, 2013 and voted to deny the amendment to the
Charter because: (1) Section 1722-A of the Law, 24 P.S. § 17-1722-A, prohibits a
charter school from operating out of more than one location; (2) the Charter
prohibits Charter School from operating its school at a facility other than that listed
in the Charter absent written consent from the District; and (3) of concerns
regarding Charter School’s educational achievement.
II. Appeal to the CAB
Charter School appealed the District’s denial of its amendment to the CAB,
asserting that the Law does not prohibit it from operating in two locations, the
District was estopped from raising any issues regarding educational concerns
because such concerns were not raised during the Charter renewal process, and any
educational concerns are irrelevant to whether Charter School can amend its
Charter to open a second location. (Charter School’s Appeal, R.R. at 16a-21a.)
The District filed its Motion, arguing that: (1) because its denial of the amendment
was essentially the denial of a new charter for the proposed second location,
Charter School had to obtain a certain number of signatures before appealing the
3
denial under the Law and did not;2 and (2) the Law prohibits, with one exception
not applicable here, charter schools from operating out of two locations under the
same charter. (District’s Motion, R.R. at 22a; District’s Brief in Support of Motion
to Quash Appeal (District’s Brief in Support), R.R. at 23a-26a.)
After both parties filed briefs, the CAB held a hearing during which it heard
argument on the Motion. In their briefs and during the argument before the CAB,
Charter School and District argued whether the Law, and this Court’s decision in
Montessori, permitted Charter School to operate a second campus by amending its
original Charter. (Hr’g Tr. at 7-12, R.R. at 40a-45a; District’s Brief in Support,
R.R. at 23a-26a; Charter School’s Brief in Opposition to District’s Motion to
Quash (Charter School’s Brief in Opposition), R.R. at 28a-32a.) Charter School
mentioned, in its argument to the CAB, that the question of whether the Law,
Montessori, and/or Northside Urban Pathways had decided whether a charter
school can, by amendment to its charter, obtain permission to operate a second
location, went to the merits and “would be addressed at this body at a future date”
if the appeal was permitted to go forward. (Hr’g Tr. at 12, R.R. at 45a.)
At the end of the hearing, the CAB voted to grant the Motion and dismiss
Charter School’s appeal on the grounds that “[t]here is nothing in the [Law] that
supports the position that a charter school can open a second location via an
amendment to its original charter.” (Hr’g Tr. at 13, R.R. at 46a.) The CAB relied
2
Section 1717-A(h)(2), (5) of the Law requires that, before a charter school can appeal
the denial of an original charter to the CAB, the charter school must obtain a certain number of
signatures from those residing in the school district in which the charter school would be located
and that a court of common pleas has to certify that the charter school complied with the
signature requirement. 24 P.S. § 17-1717-A(h)(2), (5).
4
upon the concurring and dissenting opinion in Montessori to support its holding
that the Law did not permit Charter School to open a second location by amending
its Charter. (CAB Decision at 3 n.2 (citing Montessori, 55 A.3d at 203-06
(Pellegrini, P.J., concurring and dissenting).) The CAB further held that it was not
bound by the majority in Montessori because the issue was not raised by the parties
or addressed by this Court. (Hr’g Tr. at 13-14, R.R. at 46a-47a; CAB Decision at
3.) Charter School now petitions this Court for review.3
III. Appeal to this Court
This Court addressed the issue of whether a charter school can amend its
existing charter to change the material terms contained therein, including the
addition of a second location or school, in the companion cases of Northside Urban
Pathways and Montessori. These cases also involved the question of what entity
had jurisdiction to consider appeals from the denial of amendment requests, the
CAB or a court of common pleas. Northside Urban Pathways and Montessori
were argued on the same day before the same en banc panel, and the opinions were
issued on the same day.
In Northside Urban Pathways, a charter school sought to amend its charter,
which originally authorized it to operate a school for grades six through twelve, to
open a second school that included kindergarten through grade five. Northside
Urban Pathways, 56 A.3d at 82. The school district denied the amendment
3
This Court’s review of an order of the CAB is “limited to a determination of whether
constitutional rights were violated, errors of law committed or whether the decision is not
supported by substantial evidence.” Community Service Leadership Development Charter
School v. Pittsburgh School District, 34 A.3d 919, 924 n.7 (Pa. Cmwlth. 2012).
5
application, indicating that because of the significance of the proposed changes the
charter school was going to have to submit a new charter school application. Id.
The charter school appealed to the CAB, but the CAB dismissed, on the school
district’s motion, for lack of jurisdiction. Id. at 82-83. The charter school
appealed to our Court, arguing that the CAB erred in dismissing its appeal because
the CAB had implied authority under the Law to consider the appeal from the
denial of a proposed amendment of a charter. Id. at 83. This Court agreed and
held that the CAB did have jurisdiction to consider such appeals under its implied
authority to consider adverse decisions of local school boards to ensure review of
“every significant decision that could be made by a school district with respect to a
charter school.” Id. at 85. Further, we affirmed the validity of a charter school
changing the material terms of its charter through amendment under the Law,
explaining:
A charter school’s application, which is ultimately incorporated into
the terms of the charter, is a very detailed document . . . . Inevitably,
though, these details will have to be adjusted during the life of a
school. Northside provides one instructive example. If a charter
school states in its charter application that it will be located in a
particular building, then that provision becomes part of the school’s
charter. If the school changes its location during the term of the
charter without amending its charter, it is subject to closure under
Section 1729-A(a)(1) of the . . . Law, 24 P.S. § 17-1729-A(a)(1).
However, a charter school may not have any choice but to change its
location.
....
[T]o hold, as [the school district] suggests, that charters cannot be
amended as a matter of law runs contrary to the legislature’s intent to
offer parents and students a charter school alternative to the schools in
their district.
....
Further, as has been pointed out by the Department of
Education, a single school cannot have two charters that expire on
different days. This makes sense. To deny the possibility of a charter
amendment would be very limiting upon the charter school. It would
6
be bound to every item in its charter, such as school building location.
To move to a new school building would require the charter school to
set up a second corporation, obtain new funding, and form a new
administration. This would make the . . . Law unwieldy. It would also
place the [c]harter [s]chool in a Catch-22 because the Department of
Education has decreed that a single school cannot have two charters.
Id. at 85-87 (emphasis added). We acknowledged that charters are legally binding
documents, but noted that “legally binding instruments such as licenses and
contracts are capable of amendment, even with respect to material terms” and that
the consequence of not permitting a charter school to amend its original charter
would mean that charter schools could not make the “fundamental decision to
amend the charter to allow the school to continue to operate.” Id. at 86 & n.9.
Accordingly, this Court reversed the CAB’s decision and directed the CAB to
review the charter school’s amendment request to expand its grade levels and open
a new location “in the same manner it would review a decision revoking or not
renewing a charter.” Id. at 87.
In Montessori a regional charter school sought to renew and amend its
charter to permit it to open a second charter school facility to increase its
enrollment capacity. Montessori, 55 A.3d at 198-99. After requesting additional
information regarding the proposed second facility, the school districts approved
the renewal, but one school district denied the requested amendment and the
second school district deferred its decision pending the charter school’s submission
of additional information associated with a new charter. Id. at 199. The charter
school appealed the school districts’ decisions to the CAB and to the court of
common pleas (trial court). Id. The CAB denied the appeal on the grounds that
the Law was silent on the subject of charter amendments and, therefore, it did not
have jurisdiction over charter amendments. The trial court held that it had
7
jurisdiction to consider the appeal, noting that the CAB had declined to act on the
appeal. Id. at 199-200. The trial court: rejected the school districts’ arguments
that the request to expand into a new building should be considered a new
application and not an amendment; held that the school districts arbitrarily and
unreasonably denied/deferred action on the amendment; and directed the school
districts to approve the amendment. Id. at 200. The school districts appealed to
this Court. In affirming the trial court’s order, we held that the trial court had
jurisdiction, although such appeals would be heard by the CAB in the future, and
that the trial court did not err in holding that the school districts’ decisions were
adjudications and were arbitrary and capricious. Id. at 200-03 & n.6. We
specifically stated that the school districts could not treat the amendment
application the same as an application for a new charter, which by forcing the
school to “jump through many unnecessary hoops, it effectively foreclosed the use
of an amendment as a vehicle to expand [the charter school’s] physical operation.”
Id. at 201. Our opinion cited Northside Urban Pathways for “a complete
discussion of why a charter is an amendable license.” Id. at 201 n.8.
The school district in Northside Urban Pathways had asserted, inter alia, that
a charter school could not, as a matter of law, amend its existing charter to open an
additional school at a new location. Northside Urban Pathways, 56 A.3d at 86.
This argument became the basis of President Judge Pellegrini’s minority opinions
in both Northside Urban Pathways and Montessori, in which he disagreed with the
majorities’ interpretation of the Law as permitting charter amendments. Id., 56
A.3d at 88, 90 (Pellegrini, P.J., dissenting); Montessori, 55 A.3d at 204 (Pellegrini,
P.J., concurring and dissenting). He specifically disagreed that the Law could be
interpreted to “authorize a charter school to amend its charter to create another
8
separate school at another location without first submitting a charter application for
such a facility.” Northside Urban Pathways, 56 A.3d at 87; see also Montessori, 55
A.3d at 204. The minority opinions further noted that, pursuant to Section 1722-
A(d) of the Law, “[t]he only district that can allow a charter school to operate at
more than one location under one charter is the School District of Philadelphia,”
which is the only first class school district in the state. Northside Urban Pathways,
56 A.3d at 90 n.12 (citing 24 P.S. § 17-1722-A(d)); Montessori, 55 A.3d at 206 n.9
(same).4
The parties and the CAB focus their analysis on the majority and minority
opinions in Montessori because, in that case, our Court’s holding did permit a
charter amendment to add a second charter school facility in Erie for existing
students. While the District is correct that the majority opinion in Montessori did
not analyze the issue of whether a charter school could have more than one
location under the Law, which was not raised by the school districts in that case,
this Court was clearly aware of the issue as it was set forth in the concurring and
dissenting opinion. The majority opinions in both Montessori and its companion,
Northside Urban Pathways, did not adopt the position of the minority opinions,
which would have interpreted the Law as not permitting charter amendments, and
4
President Judge Pellegrini also disagreed that the CAB had jurisdiction over the denial
of amendment requests because the Law specifically set forth the matters that fell within the
CAB’s jurisdiction, which did not include amendment requests. Northside Urban Pathways, 56
A.3d at 90-91 (Pellegrini, P.J., dissenting). He would have held that such denials would be
appealable to a court of common pleas under Section 752 of the Local Agency Law, 2 Pa. C.S. §
752, Northside Urban Pathways, 56 A.3d at 91, and, therefore, he concurred with Montessori’s
holding that the court of common pleas had jurisdiction over the school districts’ denial of the
charter school’s amendment request, Montessori, 55 A.3d at 203-04 (Pellegrini, P.J., concurring
and dissenting).
9
specifically charter amendments related to operating at more than one facility.
Accordingly, based on Northside Urban Pathways and Montessori, a charter school
may amend the material details contained within its original charter, including
changing a charter school’s location or adding a second location of a charter
school.5 Northside Urban Pathways, 56 A.3d at 85-87 & n.9; Montessori, 55 A.3d
at 201.6
Thus, Northside Urban Pathways and Montessori appeared to resolve the
question of whether a charter school may add a second location via a charter
amendment under the Law. However, the District nonetheless argues that, as
referenced by the minority opinions in Northside Urban Pathways and Montessori,
there is a section of the Law which it believes prohibits the addition of a second
location by Charter School—Section 1722-A(d). Because the majority opinions in
those cases did not explicitly discuss the effect of Section 1722-A(d), we will
directly address this question now.
Section 1722-A(d) provides that, “[n]otwithstanding any other provision of
this [Law], a school district of the first class may, in its discretion, permit a charter
5
We note that Charter School is not seeking to expand, as the charter school did in
Northside Urban Pathways, the grade levels it educates; it is only requesting to add a second
location to which it will move its students in grades five through seven.
6
We recently reiterated that a charter school may change the material terms in its charter
via an amendment and that the failure to do so before implementing such changes may result in
the closure of the school. Career Connections Charter High School v. School District of
Pittsburgh, 91 A.3d 736, 743-44 (Pa. Cmwlth. 2014) (citing Northside Urban Pathways and
stating, in an appeal from the non-renewal of a charter, that “[i]n order to change [the] terms [of
the charter], [the charter school] was required to amend its charter” and “[b]ecause it changed
[the terms of its charter] without doing so, [the charter school was] subject to closure”).
10
school to operate its school at more than one location.” 24 P.S. § 17-1722-A(d).
District’s argument is that, since the legislature specifically authorized
Philadelphia School District, the only first class school district, to permit charter
schools to operate at more than one location, the legislature intended that no other
school districts could do so. The District also contends that proposed amendments
to the Law would delete the phrase “in school districts of the first class” in Section
1722-A(d), which necessarily means that non-first class school districts do not
presently have the authority to approve a charter school’s request to operate at
multiple locations. See Meier v. Maleski, 670 A.2d 755, 759 (Pa. Cmwlth. 1996)
(stating “[a] change in the language of the statute ordinarily indicates a change in
legislative intent”). Charter School, on the other hand, points out that the Law
does not prohibit a charter school located outside of Philadelphia from operating at
more than one location and that the Law contains numerous special provisions
relating to the operation of charter schools in Philadelphia, of which this is only
one.7
Thus, the question is whether a provision of the Law which is explicitly
permissive is also impliedly prohibitive: does the authorization of one school
district operate to prohibit all other school districts. Resolution of this question
7
See Section 1720-A(b)(1)-(3), 24 P.S. § 17-1720-A(b)(1)-(3) (authorizing school
districts of the first class to renew a charter for a period of one year if the school determines that
there is insufficient data regarding the charter school’s academic performance to assess that
performance); Section 1726-A(a.1) of the Law, 24 P.S. § 17-1726-A(a.1) (requiring school
districts of the first class to provide certain transportation in addition to what is required by non-
first class school districts); Section 1726-(A)(d) of the Law, 24 P.S. § 17-1726-A(d) (mandating
school districts of the first class to provide a copy of their transportation policy to the
Department of Education); and Section 1729-A(a.1) of the Law, 24 P.S. § 17-1729-A(a.1)
(permitting school districts of the first class to place specific conditions on the renewal of a
charter for a charter school in corrective action status).
11
requires interpretation of the section to ascertain the legislative intent. This Court,
in Northside Urban Pathways, recognized the importance of ensuring that the Law
is not rendered unwieldy and that the General Assembly’s intent in passing the
Law is to ensure that students and parents are provided with charter school
alternatives to the schools in their district. Northside Urban Pathways, 56 A.3d at
86-87. Both Northside Urban Pathways and Montessori further recognized the
benefit and practicality of permitting charter schools to amend their charters to
account for a charter school’s changing circumstances, including changing or
adding locations. The reasoning in Northside Urban Pathways and Montessori
lead, inescapably, to the conclusion that the permissive authorization in Section
1722-A(d) does not prohibit a charter school located outside Philadelphia from
seeking to add a second location, by amending its existing charter, when the
charter school’s circumstances so require. We note that, at argument, Charter
School stated that it could not find one building that was large enough to safely
house its students. The District’s reliance on the proposed legislative amendments
is misplaced as those amendments are merely proposed, and, as Charter School
notes, equally could demonstrate the General Assembly’s intent to resolve any
ambiguity that resulted from the minority opinions in Northside Urban Pathways
and Montessori. Accordingly, we decline to rely upon Section 1722-A(d), a
permissive special provision associated only with the one school district of the first
class in the Commonwealth, to prohibit the ability of all other charter schools in
other school districts to amend the terms of their existing charters to allow the
charter schools to make the “fundamental decision[s]” that would “allow the
school to continue to operate,” such as adding a second location for existing
students. Id. at 86.
12
In summary, we conclude that there is no statutory prohibition against a
charter school located outside a school district of the first class seeking to expand
into a second location via an amendment to its charter. Accordingly, the CAB
erred in holding that Charter School could not, as a matter of law, amend its
Charter to add a second location.8 Thus, as we did in Northside Urban Pathways,
we reverse the CAB’s Order, and we remand this matter to the CAB for it to
review the District’s decision not to allow amendment of the Charter as it would
review a decision revoking or not renewing a charter under Section 1729-A(d) of
the Law, 24 P.S. § 17-1729-A(d).
IV. Conclusion
Because of our disposition of Charter School’s main argument, we need not
reach the other arguments it raised on appeal. Charter School had also argued that
that: (1) the CAB’s Order was invalid because the acting Secretary of Education
participated as a member of the CAB; and (2) the CAB violated Charter School’s
due process rights by deciding the merits of Charter School’s appeal instead of
deciding only the procedural issued raised in the District’s Motion. Were we to
have reached these issues, we would not have found them meritorious. Charter
School also argued that the District either waived its objections or is equitably
estopped from asserting any challenge to Charter School’s request to amend its
Charter to operate at a second location. However, because of our conclusion that
Charter School can, by amendment, seek to open a new location for Charter
School’s fifth through seventh grade students, we will not address the issue of
8
Because Charter School could seek to add the second location by amending its Charter,
the denial of the request to amend was not the denial of an application for a new charter and it
was unnecessary for Charter School to obtain the number of signatures required by Section 1717-
A(h)(2), (5) of the Law.
13
whether the District waived its objections to this second location. The District
provided reasons, in addition to its belief that such an expansion is not permitted
by amendment under the Law, for its denial of Charter School’s request; therefore,
we are remanding this matter to the CAB for it to review the District’s “decision in
the same manner it would review a decision revoking or not renewing a charter.”
Northside Urban Pathways, 56 A.3d at 87. As part of that review, the CAB will
necessarily have to consider the questions of whether the District waived its
objection to the second location and whether the District’s additional reason for
denying the amendment was irrelevant.
For the foregoing reasons, we reverse the Order of the CAB dismissing
Charter School’s appeal, and we remand this matter for the CAB to review the
District’s decision for denying Charter School’s amendment request as it would
review a school district’s decision to revoke or to not renew a charter under
Section 1729-A(d) of the Law, 24 P.S. § 17-1729-A(d).
________________________________
RENÉE COHN JUBELIRER, Judge
14
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Lehigh Valley Dual Language :
Charter School, :
Petitioner :
:
v. : No. 2010 C.D. 2013
:
Bethlehem Area School District, :
Respondent :
ORDER
NOW, July 22, 2014, the Order of the State Charter School Appeal Board
(CAB) entered in the above-captioned matter is hereby REVERSED, and this
matter is REMANDED to the CAB to review the Bethlehem Area School
District’s decision for denying Lehigh Valley Dual Language Charter School’s
amendment request as it would review a school district’s decision to revoke or to
not renew a charter under Section 1729-A(d) of the Act of March 10, 1949, P.L.
30, added by Section 1 of the Act of June 19, 1997, P.L. 225, as amended, 24 P.S.
§ 17-1729-A(d).
Jurisdiction relinquished.
________________________________
RENÉE COHN JUBELIRER, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Lehigh Valley Dual Language :
Charter School, :
Petitioner :
:
v. : No. 2010 C.D. 2013
: Argued: May 13, 2014
Bethlehem Area School District, :
Respondent :
BEFORE: HONORABLE DAN PELLEGRINI, President Judge
HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
DISSENTING OPINION
BY PRESIDENT JUDGE PELLEGRINI FILED: July 22, 2014
Because the Charter School Law (Law)1 only permits an application
for a charter school and not a charter school district, except in Philadelphia, I
would hold that the State Charter Appeal Board (CAB) properly granted the
Bethlehem Area School District’s (School District) motion to quash and properly
dismissed the Lehigh Valley Dual Language Charter School’s (Charter School)
appeal. Accordingly, I respectfully dissent.
As the majority recounts, the issue in this case is a simple one – may a
charter school board operate two or more schools under one charter. In finding
1
Act of March 10, 1949, P.L. 30, added by Section 1 of the Act of June 19, 1997, P.L.
225, as amended, 24 P.S. §§17-1701-A – 17-1751-A.
that a charter school board can operate a school at more than one location, the
majority does not rely on any provision of the Law or analysis of the Law. Instead,
it conjures up some sort of unexpressed dicta or holding from our decision in
Montessori Regional Charter School v. Millcreek Township School District, 55
A.3d 196 (Pa. Cmwlth. 2012), stating:
While the District is correct that the majority opinion in
Montessori did not analyze the issue of whether a charter
school could have more than one location under the Law,
which was not raised by the school districts in that case,
this Court was clearly aware of the issue as it was set
forth in the concurring and dissenting opinion. The
majority opinion[] in Montessori … did not adopt the
position of the minority opinion[], which would have
interpreted the Law as not permitting charter
amendments, and specifically charter amendments
related to operating at more than one facility….
Majority Opinion, slip op. at 9-10. The majority opinion in Montessori said
nothing about whether a charter school could operate at more than one location
and, as such, it necessarily stands for nothing as precedent on that issue.
In analyzing the Law, it is clear that only one location is permitted
under one charter. The Law provides that a charter school may only be created by
application to establish either a single district charter school under Section 1717-A
of the Law, 24 P.S. §17-1717-A, or a multi-district regional charter school under
Section 1718-A(a), 24 P.S. §17-1718-A(a). Section 1719-A(11) of the Law, 24
P.S. §17-1719-A(11), states that an application to establish a charter school must
indicate the address and a description of the physical facility in which the charter
school will be located. There is simply no provision in the Law authorizing a
DRP - 2
charter school to create a separate charter school facility with one exception that
confirms this analysis.
Section 1722-A(d) of the Law, 24 P.S. §17-1722-A(d), states that
“[n]otwithstanding any other provision of this act, a school district of the first class
may, in its discretion, permit a charter school to operate its school at more than one
location.” In turn, Section 202, 24 P.S. §2-202, states, in relevant part, that “[e]ach
school district having a population of one million (1,000,000) or more, shall be a
school district of the first class.” Because the School District is not a first class
school district, the General Assembly did not grant it the power to permit the
Charter School to operate at more than one location or facility. See Veterans of
Foreign Wars Post 1989 v. Indiana County Board of Assessment Appeals, 954
A.2d 100, 106 (Pa. Cmwlth. 2008) (“The maxim expressio unius est exclusio
alterius holds that the express inclusion of one thing implies the exclusion of
another; this means that any omission by the legislature was deliberate.”) (citations
omitted).2
2
I would also affirm the CAB’s quashing of the appeal for the reason set forth in my
dissent in Northside Urban Pathways Charter School v. State Charter School Appeal Board, 56
A.3d 80, 90-91 (Pa. Cmwlth. 2012) (Pellegrini, P.J., dissenting): that the CAB’s jurisdiction is
limited to appeals from a school district’s denial of a charter school application under Sections
1717-A(i)(1) and 1718-A(c), 24 P.S. §§17-1717-A(i)(1), 17-1718-A(c); appeals from a school
district’s deemed denial of an application, under Section 1717-A(g), 24 P.S. §17-1717-A(g); and
appeals from a school district’s revocation or nonrenewal of a charter under Section 1729-A(d),
24 P.S. §17-1729-A(d). Because the General Assembly did not confer upon the CAB the power
to consider the denial of a charter amendment request, such an appeal of a local agency
adjudication is properly lodged in the court of common pleas of the county in which the school
district is located. Sections 101 and 752 of the Local Agency Law, 2 Pa. C.S. §§101, 752;
Section 933(a)(2) of the Judicial Code, 42 Pa. C.S. §933(a)(2).
DRP - 3
Accordingly, unlike the majority, I would affirm the CAB.
___________________________________
DAN PELLEGRINI, President Judge
DRP - 4